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R v Konzani [2005] EWCA Crim 706; [2005] 2 Cr. App. R. 14

Criminal – Consent –Defence of honest belief of consent

Facts:

Feston Konzani was charged with three counts of inflicting grievous bodily harm contrary to s 20 of the Offences against the Person Act 1861. Konzani was HIV positive and aware of his condition. He had unprotected sexual intercourse with three complainants without informing them of his condition. Consequently, the three complainants contracted HIV.

Issues:

Whether there was a reasonable or genuine belief by Konzani that the complainants were aware of his HIV positive status and thus, consented to the risk of contracting HIV through unprotected sexual intercourse. Konzani relied on the defence of reasonable or genuine belief against s 20 of the Act. However, on appeal it was found that Konzani’s concealment of his HIV status was incongruent with honesty.

Held:

There was no evidence to indicate or to which the jury could have inferred, that Konzani had the honest belief that the complainants had consented to unprotected sexual intercourse, knowing that they were exposing themselves specifically to the risk of contracting HIV. The case of R v Dica [2004] EWCA Crim 1103 was referred to and applied to some degree, as the principle of personal autonomy to ensure that the individual takes necessary precautions to mitigate their risks of infection was acknowledged. However, it was distinguished on the basis that where Konzani had knowingly concealed the fact that he had HIV from his sexual partners, his sexual partner’s personal autonomy could not reasonably be expected to extend to anticipate his deception. Therefore, his concealment of his condition consequently led to the transmission of HIV to the complainants. The complainants could not have given proper consent as they were not honestly informed. The defence of honest belief was not upheld under s 20 of the Act. The appeal was dismissed and the conviction stayed.


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